Citation Nr: 1322823 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 10-12 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a low back disability, to include as secondary to service-connected adenocarcinoma of the prostate (prostate cancer). REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Fields, Counsel INTRODUCTION The Veteran served on active duty from August 1963 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned at a December 2011 hearing at the RO. A transcript of the hearing has been associated with his claims folder. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. Both files have been considered as part of this appeal. In November 2012, the Board remanded this issue for further development and consideration. The remand directives were not substantially completed, and the case must again be remanded. See Stegall v. West, 11 Vet. App. 268 (1998). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Additional VA treatment records (dated through September 2012, located in the Virtual VA file) and private treatment records (dated through November 2011) were received upon remand. Many of these records are relevant to the claim, as they pertain to the Veteran's prostate cancer and low back disability and symptoms. The prior remand specifically directed to schedule the Veteran for a VA examination to determine the nature and etiology of his current low back disability, to include whether it was caused or aggravated by his prostate cancer, if any relevant records were received. Nevertheless, this was not accomplished. Further, a Chief of Urology with the Veterans Health Administration (VHA) indicated in May 2012 that prostate cancer can frequently spread to the vertebrae, although there was no evidence of that having occurred in the Veteran's case at that time. This specialist also stated that the Veteran's prostate cancer might aggravate his chronic back pain at a later date. The currently available medical evidence is more than six months old, and the Veteran generally had follow-ups for his prostate cancer every six months. As such, the Board finds that this case must be remanded again to afford the Veteran the previously directed VA examination. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the etiology of his current low back disability. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be made available to the examiner. Review of such records should be reflected in the examination report or in an addendum. All indicated tests and studies should be conducted. The examiner should answer each of the following: (a) Is it at least as likely as not (probability of 50 percent or more) that the Veteran's current low back disability was caused, in whole or in part, by the service-connected prostate cancer? (b) If not, is it at least as likely as not that the current low back disability was aggravated (meaning permanently worsened beyond its natural progression) by his prostate cancer? If aggravation is found, please identify any is medical evidence created prior to such aggravation, or the earliest evidence created at any time between the time of aggravation and medical evidence showing the current level of severity, in order to show a baseline level of the low back disability prior to the aggravation. (c) If the current low back disability is not secondary to prostate cancer, did it at least as likely as not have its onset during active service or within the year immediately following service, or is it otherwise related to service? In responding to each of the above questions, the examiner should address all low back disabilities diagnosed since August 2009. Consideration should be given to the November 2009 VA examiner's opinion, the November 2011 opinion from Dr. Ferrell, the May and August 2012 opinions from the VHA urologist, and any other pertinent medical evidence or opinions. The Veteran is competent to report his symptoms and history, including what previous providers told him about his condition, and such reports must be considered in formulating any opinions. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The examiner must provide reasons for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why and what, if any, additional evidence would be necessary before an opinion could be rendered. 2. The RO/AMC should review the examination report to ensure that it contains the information and opinions requested in this remand and is otherwise complete, and request an addendum if needed. 3. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case before returning the case to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).